LAW CHANGE

BBI report lost gains for persons with disabilities

We can't be building bridges as a country while demolishing the ones we already have

In Summary

• In view of the forgoing, persons with disabilities want Article 54 (2) amended to remove the term progressive.

• Article 90 also needs to be amended to provide for party list seats allocated to parties based on the total number of votes received in a general election

MPs Danita Gati, Tim Wanyonyi and David Ole Sankok join Kenyans at the Kencom stage in advocating for inclusive public transport on May 16, 2019
MPs Danita Gati, Tim Wanyonyi and David Ole Sankok join Kenyans at the Kencom stage in advocating for inclusive public transport on May 16, 2019
Image: FAITH MUTEGI

The recently launched BBI report was a shocker to many as it differed with what was widely circulated in social media.

For example, in the composition of Parliament, the National Assembly had 360 seats with 290 single member constituency slots and 70 multiple member to be by women, persons with disabilities, the youth, ethnic and other minorities as provided for in Articles 90 and 100 of the Constitution.

However, the real report proposes that all the 360 seats to be filled through fast past the post-election, that make it nearly impossible for these marginalised groups to make it to Parliament and other echelons of decision making.  

The 12 nomination slots that have existed since independence have been scrapped, yet they have enabled persons with disabilities to have three slots in the 11th Parliament.

Article 98 (1) (d) provides for the Senate to have two slots for a man and a woman representing persons with disabilities. These have also been lost. It, therefore, means that if the Constitution is amended as proposed, there will be no guaranteed representation of persons with disabilities in both the bicameral Parliament  and the county assemblies. Currently, 17 county assemblies don’t have any representative of persons with disabilities either elected or nominated.

Additionally, it’s abundantly clear that persons with disabilities continue being marginalised in all spheres of public and political life. For example, I got very shocking information from the Universities Fund team that visited my office this week that out of over 500,000 students in the 74 institutions (public and private), only a paltry 24 are persons with disabilities.

Further, our secondary schools have about 11,000 students with disabilities out of about three million students nationally. In primary schools, we have about 180,000 learners with disabilities against an enrolment rate of eight million pupils.

It is also shocking to note those who benefit from tax exemption are less than 20,000 in the whole country and this being a privilege given to those in formal employment to assuage the costs that arise as a result of having a disability.

It, therefore, shows the number of persons with disabilities in the public service is not only low but also underrepresented. In fact, a recent survey shows they are less than a per cent in the public service. It thus means a lot remains to be done to ensure we bring them into the mainstream, considering  10 per cent of Kenyans have one form of disability or another.

There seems to be a disconnect between the body of the BBI report and the curative measures proposed in the constitutional amendment bill. For example, while the report recognises that persons with disabilities have been marginalised and discriminated for long, the constitutional amendment bill does away with guaranteed representation.

Second, while there is acknowledgement of the need to delete the term ‘progressive’ in Article 54 (2), this hasn’t been done as well. Further, the report recognises that the review of the persons with disabilities bill has been pending for the last 11 years; this isn’t one of the 12 bills proposed for Fast-tracking.

Other bills/policies that the report proposes relating to persons with disabilities include the Kenya Sign Language Bill, the Persons with Psychosocial Disabilities Bill, the Learners with Disabilities Bill and the National Disability Policy.

In addition , there is need to put in place a political party primaries act to regulate the party nominations in free and fair manner.

In view of the forgoing, persons with disabilities want Article 54 (2) amended to remove the term progressive. Article 90 also needs to be amended to provide for party list seats allocated to parties based on the total number of votes received in a general election at the national level for parliament and county level of county assemblies.

Further, that Article 97 is amended by reducing the 360 seats meant for single and multiple member constituencies to 342, and that 18 seats are allocated to various categories of persons with disabilities with 9 being men and 9 women.

In the Senate, Article 98 be amended by deleting 98 (1)) (d) and introducing a new 98 (1) (b) to provide for two men and two women to represent persons with disabilities. The same case should apply to all the 47 counties in Article 177.

In Article 152, the President should appoint at least one Cabinet minister to be a person with disability and so are all the constitutional commissions. For principal secretaries, there should be at least three of them appointed as well.

Parliament should also fast-track the enactment of the above stated pieces of legislation in order to ensure to persons with disabilities their human rights and fundamental freedoms. Otherwise we cannot  be building bridges as a country while demolishing the one we already have for persons with disabilities. They too are Kenyans.